Carpenter v. Davis, Director TDCJ-CID

Filing 177

MEMORANDUM OPINION AND RECOMMENDATION TO APPROVE FUNDING: Carpenter has shown that the requested funding is reasonable and necessary to present his claims at the evidentiary hearing. Therefore, his motion (doc. 172) should be GRANTED and the sought funding allowed up to $7,500. (Ordered by Magistrate Judge Renee Harris Toliver on 8/17/2017) (mcrd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
DAVID LYNN CARPENTER,
Petitioner,
v.
LORIE DAVIS, Director,
Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent.

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Civil Case No. 3:02-CV-1145-B-BK

MEMORANDUM OPINION AND RECOMMENDATION
TO APPROVE FUNDING
On August 9, 2017, petitioner David Lynn Carpenter filed a motion for funding expert
assistance (Motion, doc. 172).

Respondent Lorie Davis takes no position on the motion.

(Notice, doc. 176.) Because he has shown a reasonable need, the funding should be granted.
I
Indigent state prisoners under a sentence of death are entitled to the assistance of counsel
along with investigative and expert services that are reasonably necessary to present claims in
postconviction habeas-corpus proceedings in federal court.
Upon a finding that investigative, expert, or other services are reasonably
necessary for the representation of the defendant, whether in connection with
issues relating to guilt or the sentence, the court may authorize the defendant's
attorneys to obtain such services on behalf of the defendant and, if so authorized,
shall order the payment of fees and expenses therefor under subsection (g).
18 U.S.C. § 3599(f) (West 2008). The denial of funding “has been upheld ‘when a petitioner has
(a) failed to supplement his funding request with a viable constitutional claim that is not
procedurally barred, or (b) when the sought after assistance would only support a meritless
claim, or (c) when the sought after assistance would only supplement prior evidence.’”
Woodward v. Epps, 580 F.3d 318, 334 (5th Cir. 2009) (quoting Smith v. Dretke, 422 F.3d 269,
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288 (5th Cir. 2005)).
II
It is undisputed that Carpenter is indigent and entitled to representation under this statute.
Carpenter asserts that the expert assistance of psychologists Gilda Kessner, Psy.D., and Roy S.
Malpass, Ph.D, will be necessary to make an adequate presentation at the evidentiary hearing
scheduled in this case. (Mot. at 2-3.) Dr. Kessner has provided an affidavit in support of
Carpenter’s claim that trial counsel provided ineffective assistance in failing to investigate and
present evidence that was mitigating and that Carpenter posed no future danger. (Ex. P to 3rd
Am. Pet.) Dr. Malpass has provided an affidavit regarding Carpenter’s claim that trial counsel
provided ineffective assistance in failing to investigate and present evidence that the eyewitness
identification procedure used to inculpate Carpenter was impermissibly suggestive. (Ex. N to
3rd Am. Pet.)
The evidentiary hearing in this case was scheduled to determine whether claims that were
not presented in the original state habeas corpus proceeding, including these claims, come within
an exception to procedural bar. (Order, doc. 171, at 1-2.) Therefore, it is not clear whether these
claims are procedurally barred or have any merit. Indeed, the parties have been instructed to
come prepared to present evidence on the merits of these claims as well. And because these
claims were not presented to the state court, the sought evidence would not merely supplement
prior evidence.
Carpenter requests the combined amount of $7,500, pursuant to 18 U.S.C. § 3599(f), to
cover the fees and expenses necessary to allow both experts to prepare for and testify at the
hearing.

Carpenter’s appointed counsel has consulted with both experts and, based on

experience, anticipates that the experts’ preparation, travel, and in-court time will cost no more

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than the requested amount. (Mot. at 3.) The undersigned finds that this is a reasonable amount
for the sought services.
III
Carpenter has shown that the requested funding is reasonable and necessary to present his
claims at the evidentiary hearing. Therefore, his motion (doc. 172) should be GRANTED and
the sought funding allowed up to $7,500.
SIGNED August 17, 2017.

___________________________________
RENÉE HARRIS TOLIVER
UNITED STATES MAGISTRATE JUDGE

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